The Supreme Court and State Civil Liberties

Abstract

NE OF THE MAJOR THEMES in recent writings about the United States Supreme Court has been its treatment of civil liberties cases. During Chief Justice Vinson's tenure much comment, pro and con, was elicited by the Court's comparatively restraintist approach to such cases. And in the years of Chief Justice Warren, as the Court has become more activist, the same writers have labored the same themes, but with the pros and the cons reversed. The attitudes and voting records of individual justices have been closely scanned to see whether they measured to the standards of the investigator; box scores have been compiled purporting to show such attitudes;' particular justices have had their attackers and defenders and more than one sitting judge has doffed his judicial halo long enough to defend himself (sometimes more effectively than his admirers). The present writer has been among those who have attacked the Vinson court and defended the Warren court;2 and with the judges and other writers he has been accused of fostering the same approach to civil liberties which did the Court so much harm when it was used in the economic sphere before 1937.3 But such charges have been often denied, and the modern-day activists are seemingly fairly well convinced that they have built up a rationale to distinguish the two types of cases which is convincing (at least to themselves): they no longer have guilt feelings about their own inconsistency on this score.4 There is, however, another question with which the defenders of activism in civil liberties have not dealt effectively as yet. This is the question involving the Fourteenth Amendment. After all, say the critics, even if you prove that the Bill of Rights should be industriously applied by the Court, the fact remains that the first eight amendments apply only to federal action; and while the due process clause of the Fourteenth Amendment has been used to extend parts of the Bill of Rights to the states, this process is really illegitimate because the clause does not logically bear such interpretation and because this amounts to the use of the nowdiscredited substantive interpretation of the clause. So another inconsistency is charged against the libertarians. The present article is an attempt to investigate such criticism and lay the groundwork (if possible) for a defense. Put simply,